KENNETH M. WINKLER,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 01-48001
	)
WANDA WITTHAR, ASSESSOR,	)
CARROLL COUNTY, MISSOURI,	)
	)
Respondent.	)

HOLDING

Decision of the Carroll County Board of Equalization sustaining the assessment made by the Assessor, SET ASIDE, Hearing Officer finds true value in money for the subject property for tax year 2001 to be $37,000, assessed value of $12,333.

Complainant appeared pro se.

Respondent appeared in person and by Counsel, Kevin L. Walden, Prosecuting Attorney.

Case heard and decided by Chief Hearing Officer, W. B. Tichenor.

ISSUES

The Commission takes this appeal to determine the true value in money for the subject property (2001 Lincoln Signature Town Car) on January 1, 2001.

SUMMARY

Complainant appeals the decision of the Carroll County Board of Equalization which sustained the valuation of the subject property. The Assessor determined an appraised value of $41,310 (assessed value of $13,770, as personal property). Complainant proposed a value of $38,160 (assessed value of $12,720) on his Complaint for Review of Assessment. A hearing was conducted on November 16, 2001, at the Carroll County Courthouse, Carrollton, Missouri.

The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

Complainant's Evidence

The following exhibits were received into evidence on behalf of Complainant.

Exhibit A Letter dated August 6, 2001, to Van E. Donley of the State Tax Commission, from Complainant, with attachments.

Exhibit B Notice of Board of Equalization hearing, dated July 26, 2001.

Exhibit C Statement to Board of Equalization of Complainant, dated July 3, 2001, with attachments as to purchase price of subject vehicle.

Exhibit D Board of Equalization decision letter, dated July 13, 2001.

Exhibit F Copies of news articles from the Carrollton Democrat of July 20, 2001, and July 27, 2001, and letter to the editor from Complainant, July 27, 2001.

Complainant offered Exhibit E, a letter from the State Tax Commission to Respondent, dated June 8, 1998, objection was made and sustained. This exhibit was not received as part of this record.

Complainant testified on his own behalf as to his opinion of value and the basis for it. Complainant's opinion of value was the actual purchase price of the vehicle less depreciation from the date of purchase to January 1, 2001, which calculates to $37,000.

Complainant's handwritten closing argument was also received as part of the record.

Respondent's Evidence

The following exhibits were received into evidence on behalf of Respondent.

Exhibit 1 Complainant's 2001 Assessment List, with Bill of Sale for subject and Invoice Order Confirmation on subject.

Exhibit 2 2001 State Tax Commission Valuation Guide, p. 46.

Exhibit 3 Missouri Department of Revenue Assessment Listing for Carroll County, dated 3/2/01, p. 161.

Exhibit 4 NADA Book for 6/27/00, pp. 580--584.

Exhibit 5 Missouri Department of Revenue Assessment Listing for Carroll County, dated 3/2/01, p. 497.

Exhibit 6 Complainant's 2000 Assessment List and Bill of Sale for 2000 vehicle.

Exhibit 7 2000 State Tax Commission Valuation Guide, p. 45.

Exhibit 8 NADA Book p. 61.

Exhibit 9 Window Sticker Listing for subject.

Respondent testified in her own behalf as to the basis for her valuation of the subject property.

FINDINGS OF FACT

1.     Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the Carroll County Board of Equalization.

2. The subject property consists of a 2001 Lincoln Signature Town Car, VIN 1LNHM82W61Y613942. It is identified by Assessor's Account number 14231440 for tax year 2001.

3. Complainant purchased the subject vehicle in an open market arms length transaction on October, 12, 2000, for $39,660. The subject was then traded in on August 31, 2001, with a trade in value was $28,500.

4. Complainant's evidence was substantial and persuasive to both rebut the procedural presumption of correct assessment by the Board of Equalization and establish the true value in money (fair market value) of the subject automobile on January 1. 2001.

5. The true value in money of Complainant's 2001 Lincoln Signature Town Car on January 1, 2001, was $37,000, assessed value of $12,333.

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo. The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Section 138.431.4, RSMo.

Board of Equalization Presumption

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958). There is no presumption that the assessor's valuation is correct. Section 138.431.3, RSMo.

Standard for Valuation

Section 137.115, RSMo 1994, requires that property be assessed based upon its true value in money which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and bought by one who is willing or desirous to purchase but who is not compelled to do so. St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children's Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993). It is the fair market value of the subject property on the valuation date. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).

Weight to be Given Evidence

The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled. The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide. St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).

Trier of Fact

The Hearing Officer as the trier of fact may consider the testimony of each witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer is not bound by the opinions of witnesses who testify on the issue of reasonable value, but may believe all or none of the testimony and accept it in part or reject it in part. St. Louis County v. Boatmen's Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).

Complainants' Burden of Proof

In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 1999. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897. Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact. The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

Owner's Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value. Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970). The owner's opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation. Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).

Sale of Subject

Evidence of the actual sales price of property is admissible to establish value at the time of an assessment, provided that such evidence involves a voluntary purchase not too remote in time. The actual sale price is a method that may be considered for estimating true value. The actual sales price, between a willing seller who is not obligated to sell and a willing buyer who is not compelled to buy, establishes an outer limit on the value of real property. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526 (App. E.D. 1993).

DECISION

The essential facts in this appeal are very simple. Complainant purchased his 2001 Lincoln on October 12, 2000, for $39,660. This was a market transaction from a recognized Lincoln automobile dealer. Exhibit C, Application for Missouri Title and License and Bill of Sale; Exhibit 1, Bill of Sale. Ten and a half months later, on August 31, 2001, Complainant traded his 2001 Lincoln for a new 2002 Lincoln, receiving $28,500 as trade in on his 2001 Lincoln. Exhibit G.

Complainant's 2001 Lincoln depreciated $11,160 from October 12, 2000, to August 31, 2001, ($39,660 - $28,500 = $11,160) or approximately $1062.85 per month ($11,160/10.5 = $1,062.85). The amount of depreciation on the Lincoln for the approximately two and a half month period from October 12, 2000, to January 1, 2001, would calculate to approximately $2,660 ($1062.85 x 2.5 = $2,657.14, rounded to $2,660.

The value of Complainant's 2001 Lincoln on January 1, 2001, would be $37,000 ($39,660 - $2,660 = $37,000).

The sale of the subject vehicle on October 12, 2000, set the outer limit of the value for the automobile. St. Joe Minerals, supra. The trade in of the vehicle on August 31, 2001, set the value of the vehicle as of that time. The difference in the values is the best indicator of the depreciation that should be applied to Complainant's car. A deduction in value equal to approximately two and a half months to account for the depreciation of the vehicle from October to January is appropriate.

Respondent valued the automobile based on the Commission Valuation Guide with a listed assessed value based on the manufacturer's suggested retail price. This was entirely appropriate for mass valuation of vehicles in Carroll County. For this purpose the Commission guide serves a useful purpose in assisting an assessor in carrying out the statutory duties for valuation of personal property. However, in making a valuation on an individual car in a contested case, other facts and factors must be considered as the evidence may be developed in a given record. Facts which must be considered include what an individual actually pays for a given vehicle in an arm's-length transaction. The operative word concerning the STC Valuation Guide is Guide. It is a guide. It does not set in stone automobile values.

The record in this appeal establishes without contradiction that the manufacturer's suggested retail price was not the fair market value of the subject property when it was purchased new by Complainant in a market transaction. The manufacturer's suggested retail price is a suggested price. It is a price which is seldom, if ever, the price paid when purchases of new automobiles are made.

ORDER

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for Carroll County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax year 2001 is set at $12,333.

A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision. The application shall contain specific grounds upon which it is claimed the decision is erroneous. Failure to state specific facts or law upon which the appeal is based will result in summary denial. Section 138.432, RSMo 1994.

If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission. If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of Carroll County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal. If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.

Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED December 11, 2001.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Chief Hearing Officer

OF HEARING OFFICER DECISION

On December 11 2001, Chief Hearing Officer, W. B. Tichenor, entered his Decision and Order (Decision) setting aside the assessment by the Respondent, which had been sustained by the Carroll County Board of Equalization, and finding value for the subject personal property.

Respondent's Grounds for Review

Respondent timely filed (January 8, 2002) her Application for Review of the Decision. Complainant timely filed (January 17, 2002) his response to said Application. The grounds stated in the Application for Review were:

1. The Hearing Officer erred in finding that the subject vehicle was traded in or August 31, 2001, with a trade in value of $28,500.

2. The Hearing Officer erred in finding that the subject vehicle had a true value in money of $37,000 on January 1, 2001.

3. The Hearing Officer erred in finding that the stated purchase price for a brand new vehicle, purchased from a recognized dealership, is conclusive as to its fair market value, or true value in money on the date purchased.

4. The Hearing Officer erred in not following the State Tax Commission's Property Valuation Guide in setting the value of the subject vehicle.

Standard Upon Review

The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled. The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide. St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).

The Hearing Officer as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert's testimony and accept it in part or reject it in part. St. Louis County v. Boatmen's Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).

The Commission will not lightly interfere with the Hearing Officer's Decision and substitute its judgment on the credibility of witnesses and weight to be given the evidence for that of the Hearing Officer as the trier of fact. Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Lowe v. Lombardi, 957 S.W.2d 808 (Mo. App. W.D. 1997); Forms World, Inc. v. Labor and Industrial Relations Com'n, 935 S.W.2d 680 (Mo. App. W.D. 1996); Evangelical Retirement Homes v. STC, 669 S.W.2d 548 (Mo. 1984); Pulitzer Pub. Co. v. Labor and Indus. Relations Commission, 596 S.W.2d 413 (Mo. 1980); St. Louis County v. STC, 562 S.W.2d 334 (Mo. 1978); St. Louis County v. STC, 406 S.W.2d 644 (Mo. 1966).

DECISION

The Decision rendered by the Hearing Officer provides in a clear, concise and succinct manner ample and sound reasoning for his determination of value. A review of the record provides competent, substantial and persuasive support for the determinations made by the Hearing Officer. A reasonable mind could have conscientiously reached the result which the Hearing Officer reached on each of these points. There is competent and substantial evidence to establish a sufficient foundation for the Findings. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused his discretion as the trier of fact and concluder of law in this appeal. Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d 403 (Mo. App. E.D. 1995). Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).

The Hearing Officer did not err in his determinations as challenged by Respondent. The Respondent's points are not well taken. There are no grounds upon which the Decision of the Hearing Officer should be reversed or modified.

ORDER

The Decision of the Hearing Officer is affirmed.

Judicial review of this Order may be had in the manner provided in Sections 138.470 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.

SO ORDERED May 9, 2002.

STATE TAX COMMISSION OF MISSOURI

Sam D. Leake, Chairman

Bruce E. Davis, Commissioner

Jennifer Tidwell, Commissioner